If you’re not a health care policy nerd like me and don’t pay close attention to the fear-mongering commonly found in outlets like The Washington Post and CNN, you may have missed the recent explosion of news stories and opinion articles bashing the Trump administration for allegedly putting Obamacare in grave danger — and doing so in a reckless and legally questionable manner, too.
For instance, New York magazine accused the Trump administration of “standing against the rule of law.” The New York Times’ Margot Sanger-Katz wrote a recent Trump administration decision could make it “much more difficult for individuals and small businesses to buy health insurance.” One Washington Post writer called the move “the coward’s way out on health care.”
The outrage from the Left was sparked by a decision made on June 7 by the Justice Department to choose not to defend key aspects of Obamacare in a recent lawsuit filed by 20 states and several other plaintiffs. According to the lawsuit, Obamacare will become unconstitutional on January 1, 2019, when the Obamacare individual mandate is reduced to $0. (Congress and President Trump gutted the individual mandate in December when it passed the Tax Cuts and Jobs Act.)
As I noted in May for Townhall, the reason nearly half of all states and other legal experts believe the law will no longer be constitutional in January is:
“… in the 2012 decision upholding the legality of the Obamacare individual mandate, Chief Justice John Roberts cast the tie-breaking vote in favor of the Affordable Care Act’s individual mandate on the basis that the penalty imposed for not having ‘qualifying’ health insurance is not a fine, penalty, or fee, but rather a tax. Since Congress has the power to tax, Roberts reasoned, it has the power to impose the individual mandate.”
“When Congress and the Trump administration … lowered the Obamacare penalty to $0 (effective January 1, 2019), [they eliminated] any possibility of the fine being considered a ‘tax.’ They did not, however, eliminate the mandate to purchase health insurance (because they couldn’t under the congressional rules used to pass the tax reform law). Without the so-called ‘tax’ tied to the mandate, the foundation of Roberts’ argument will completely disappear when the penalty is removed.”
Or, put simply, if Obamacare’s individual mandate is only constitutional because Congress has the power to tax, then without a tax, there’s no legal basis for the mandate.
Further, the Supreme Court has ruled in previous cases that when a specific provision of a law is determined to be unconstitutional, other provisions of that law should also be struck down if the Court determines Congress wouldn’t have approved the legislation without the eliminated, unconstitutional aspect of the law. The reason for this is simple: Courts shouldn’t be legislating from the bench.
It turns out Attorney General Jeff Sessions and the Trump administration agree. On June 7, they noted in an official court filing they concur with many of the states’ arguments and won’t be defending key aspects of the Affordable Care Act as a result.
This situation is truly remarkable. It’s extremely rare for the federal government, which has an obligation to defend most properly enacted laws in court, to acknowledge that an existing federal law violates the Constitution. Yet, that’s exactly what the Trump administration has done.
“As you know, the Executive Branch has a longstanding tradition of defending the constitutionality of duly enacted statutes if reasonable arguments can be made in their defense,” Jeff Sessions wrote in a letter to House Speaker Paul Ryan last week explaining the Department of Justice’s position. “But not every professionally responsible argument is necessarily reasonable in this context, as ‘different cases can raise very different issues with respect to statutes of doubtful constitutional validity,’ and thus there are ‘a variety of factors that bear on whether the Department will defend the constitutionality of a statute.’ Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996). Weighing those considerations here, I have concluded that this is a rare case where the proper course is to forgo defense of” certain sections of the Affordable Care Act.
This decision by the Justice Department isn’t totally unprecedented. As The Hill noted recently, the Obama administration chose not to defend the Defense of Marriage Act in 2011 when it was being challenged by those who believe it’s unconstitutional to legally define marriage as being between one man and one woman.
If the U.S. District Court for the Northern District of Texas sides with the argument presented by the government, Obamacare’s mandate requiring insurers to accept all applicants, including those with pre-existing conditions, could be eliminated. So could the provision in the ACA that forbids insurers charging people more or less money based on the health of an applicant and other factors.
Liberals are right to be concerned. It’s hard to imagine the ACA’s individual mandate could be considered constitutional on the basis of it being a tax if the tax is eliminated, and it’s equally difficult to imagine the law would have been passed by Congress without the individual mandate, which the law itself calls “essential” to the operation of the Obamacare health insurance exchanges. But what about all those people who rely on the Obamacare exchanges for their health insurance? Many liberals are arguing the Trump administration’s decision will put millions of people at risk of losing their insurance.
Several important considerations must be kept in mind. First, if the law is unconstitutional, it shouldn’t matter what the consequences are. The Constitution is the Supreme Law of the United States, and we can’t start tolerating unconstitutional laws because we’re worried what might happen if we force Congress to follow the rule of law.
Second, it’s extremely unlikely Congress would allow millions of people to suddenly lose their health insurance. Congress would almost certainly be forced to pass a new — and hopefully better — law to replace Obamacare, one that would grant power to the states to determine the best method for helping people with pre-existing conditions and lower-income families.
Third, Obamacare is already in the midst of a horrific death spiral. Health Pocket reports families enrolled in Obamacare Bronze Plans must pay a maximum out-of-pocket cost of $13,905 before health insurers will cover all costs for medical care, and Bronze Plan premiums increased by more than 20 percent from 2017 to 2018. It’s only a matter of time before the whole system comes crashing down.
Did the Trump administration kill Obamacare? No, but it may have just put this terrible law on life support. It’s up to the courts to decide what happens next.
PHOTO: Donald Trump speaking with supporters at a campaign rally at the Prescott Valley Event Center in Prescott Valley, Arizona. Photo by Gage Skidmore. Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0)
Justin Haskins is a widely published writer and political commentator, the senior editor and founder of The Henry Dearborn Institute for Liberty, and the editorial director and research fellow at The Heartland Institute, a national free-market think tank. (His work here does not necessarily reflect the views of The Heartland Institute.). Follow him on Twitter @JustinTHaskins.